Manning v. McAllister

• Decision Date: 28 April 1970
• Docket Number: No. 32977,32977
• Parties: Joe W. MANNING, Plaintiff-Respondent, v. Robert G. McALLISTER and William R. Yinger, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 597

454 S.W.2d 597

Joe W. MANNING, Plaintiff-Respondent, v. Robert G. McALLISTER and William R. Yinger, Defendants-Appellants.

No. 32977.

St. Louis Court of Appeals, Missouri.

April 28, 1970.

McMahon, Kieffer & Schmidt, Clayton, for defendants-appellants.

Robert I. Neuman, Overland, Jerome M. Steiner, Clayton, for plaintiff-respondent.

DOERNER, Commissioner.

In this action for slander plaintiff recovered a verdict and judgment for $4,000, from which the defendants appealed.

On December 17, 1964, plaintiff was a probationary patrolman in the Police Department of the Village of St. John in St. Louis County, and the defendants McAllister and Yinger were the Chief of Police and the Sergeant, respectively, of that Department. Relying in the main on information which an informant, Neal or Nellum Smith, had furnished to the defendants, McAllister discharged plaintiff on that day on the grounds that plaintiff was guilty of conduct unbecoming an officer by associating with known felons to commit burglaries within the Village of St. John. Two or three days later Bond Ray, plaintiff's father-in-law, conferred with the defendants, his objective being, as he expressed it, because he '* * * wanted to find out just exactly what they were--what they had that they fired this boy for and the reason. I tried to just find out all the information that I could.' In response to his inquiries both defendants informed him that plaintiff was guilty of conduct unbecoming an officer for conspring with burglars and for associating with known felons to commit burglaries within the Village. Miss Janice Ray, the daughter of Bond Ray and plaintiff's sister-in-law, who was the secretary to the Village's Police Board, handed in her resignation to McAllister about the same time and inquired of him why he had discharged the plaintiff. Miss Ray testified that McAllister told her plaintiff had been dismissed due to association with known felons in the Village for the purpose of committing crimes or burglaries. McAllister denied that he had so informed Miss Ray, and stated that when she asked him the reason plaintiff had been discharged he suggested that she consult her father. Since the plaintiff prevailed we must, of course, accept the evidence in the light most favorable to plaintiff.

The principal issue presented by defendants, inherent in their first three points, is whether their defamatory utterances were qualifiedly privileged communications. Their first point is that, 'The Trial Court Errored (sic) in Not Finding as a Matter of Law That the Communications Made by the Defendants to the Plaintiff's Relatives Were Privileged Communications.' Assuming for the moment that defendants' communications were qualifiedly privileged (a valid assumption, as will shortly appear), in what manner should the trial court have made such a declaration? Defendants do not state in their point, but in the argument portion which follows they argue that, '* * * the defendants' motion at the conclusion of plaintiff's case should have been granted. * * *' We agree, but the fatal weakness in defendants' present position is that when the trial court overruled their motion for a directed verdict at the close of plaintiff's case they waived their motion by presenting evidence thereafter. Polovich v. Sayers, Mo., 412 S.W.2d 436; Appelhans v. Goldman, Mo., 349 S.W.2d 204; Snead v. Sentlinger, Mo., 327 S.W.2d 202. Furthermore, since defendants did not file a motion for a directed verdict at the close of all the evidence they are in no position to now claim that the court erred in submitting the case to the jury. Millar v. Berg, Mo., 316 S.W.2d 499; Heideman v. Lorenz, Mo., 349 S.W.2d 230. And defendants make no request for review under the plain error rule. Civil Rule 79.04, V.A.M.R.; Heideman, supra; Miller, supra.

In their next point defendants urge that, 'The Court Errored (sic) in Failing to Instruct the Jury on the Defense of Privilege as Asserted by the Defendants.' The instruction offered by the defendants and refused by the court in effect submitted to the jury the question of whether or not the communications were qualifiedly privileged. In the absence of any controversy as to the character of the surrounding circumstances and relationship, as in this case, the question of whether a communication was qualifiedly privileged was one of law, to be determined by the court and not by the jury. Hellesen v. Knaus Truck Lines, Mo., 370 S.W.2d 341; Fisher v. Myers, 339 Mo. 1196, 100 S.W.2d 551; Lee v. W. E. Fuetterer Battery & Supplies Co., 323 Mo. 1204, 23 S.W.2d 45. Accordingly, the court did not err in refusing the defendants' instruction.

The defendants, however, are on firmer ground in their complaint regarding the giving of Instruction No. 5, offered by plaintiff. In substance the jury was told by that instruction that it might infer that the utterances were maliciously made if they were slanderous and false, and if plaintiff was defamed and injured by their publication. As stated in Pulliam v. Bond, Mo., 406 S.W.2d 635, 641: '* * * The rule is recognized in Missouri as well as elsewhere that the existence of a conditional or qualified privilege precludes an inference of malice from the communication of false and defamatory matter and the plaintiff has the burden of proving express malice. See: Hellesen v. Knaus Truck Lines, Mo., 370 S.W.2d 341, 345(9), State ex rel. Zorn v. Cox, 318 Mo. 112, 298 S.W. 837, 839(2), Kleinschmidt v. Johnson, Mo., 183 S.W.2d 82, 84(3, 4), Cook v. Pulitzer Publishing Co., 241 Mo. 326, 145 S.W. 480, 490(16), * * *.' It follows that if the communications made by defendants were qualifiedly privileged the court erred in giving Instruction No. 5.

Thus, by this somewhat circuitous route, we reach the principal issue which divides the parties. Defendants maintain that the defamatory statements, made to plaintiff's relatives, which were not volunteered and were spoken only in response to the inquiries of such relatives as to the reasons why defendants had discharged plaintiff, were qualifiedly privileged communications. Plaintiff argues to the contrary, and cites Harbison v. Chicago, R.I. & P. Ry. Co., 327 Mo. 440, 37 S.W.2d 609, 79 A.L.R. 1, in support of his contention that statements to a relative are not privileged. That case, however, merely holds that a statement defaming a husband, made in the presence of the wife, is a publication of the statement, and the question of privilege was not considered or discussed. In Hellesen v. Knaus Truck Lines, Mo., 370 S.W.2d 341, 345, it was said that, "A communication is held to be qualifiedly privileged when it is made in good faith upon any subject-matter in which the person making the communication has an interest or in reference to which he has a duty, and to a person having a corresponding interest or duty, although it contains matter which, without such privilege, would be actionable. * * *" A somewhat longer definition is found in Garey v. Jackson, 197 Mo.App. 217, 193 S.W. 920, 922: 'It is the law in this state that before the defense of qualified privilege is available it must appear that the statements made by the defendant were made in the discharge of some duty, either public or private, either legal, moral, or social, to a person or persons having a corresponding interest or duty, and were spoken in connection with and were relevant and germane to some matter involving such an interest or duty, and that the words were spoken in the interest of or for the protection thereof. In addition they must have been uttered in good faith and spoken on a proper occasion, from a proper motive and based upon a probable cause, and in the honest belief that such statements were true. * * *' Our Missouri reports are replete with many and varied examples of qualifiedly privileged communications. A warning letter by an employer to his employee charging him with dishonesty, a copy of which was sent to the employee's union in accordance with the applicable union contract, Hellesen v. Knaus Truck Lines, Mo., 370 S.W.2d 341; a letter by a client to a Bar association claiming that his lawyer had double-crossed him, Lee v. W. E. Fuetterer, 323 Mo. 1204, 23 S.W.2d 45; a letter caused to be published in a newspaper, answering one inserted by plaintiff, a law professor who had been discharged, in which fellow law professors stated plaintiff was unfit to continue as a member of the faculty, Clark v. McBaine, 299 Mo. 77, 252 S.W. 428; Clark v. Hill, Mo., 252 S.W. 433; statements by an employer to a suspended employee that he had made crooked deals, and was a liar and a cheat, made in the presence of the employee's wife, Rauch v. Gas Service Co., Mo.App., 235 S.W.2d 420; a statement by a store detective to an employee, made in the hearing of others, that the employee had stolen the coat of a fellow employee, Perdue v. Montgomery Ward & Co., 341 Mo. 252, 107 S.W.2d 12; a statement by the company's president to the employees' shop committee that the employee was a thief and a damned crook and liar, Boehm v. Western Leather Clothing Co., Mo.App., 161 S.W.2d 710; a speech by the president of a student co-operative bookstore in which he charged the plaintiff, the former manager and currently the owner of a competing bookstore, with having taken a quantity of second hand books when he resigned, and with being a shrewed and unscrupulous competitor, Garey v. Jackson, 197 Mo.App. 217, 193 S.W. 920.

While the foregoing Missouri decisions reveal a wide variety of factual situations in which the defamatory statements have been held to have been made on privileged occasions, none has been cited or found by us where, as here, the statements were made in response to inquiries by relatives of the party defamed. But the weight of authority, according to the taxt writers and the cases from other jurisdictions, is that, '* * * A communication to the relatives of a party defamed, when made on request or in the...